With increasingly sophisticated attacks from both domestic and international threat actors, it is more important than ever that institutions who house sensitive government data abide by their own agreements to keep that information safe.

In this episode of the Aspire Cyber podcast, Julie Keeton Bracker chats with Derrich Phillips about what research institutions and other government contractors can expect under the Department of Justice’s Civil Cyber Fraud Initiative. Announced in 2021, the Civil Cyber Fraud Initiative stated the Department’s intention to use its most powerful fraud fighting tool, the federal False Claims Act, to enforce cybersecurity requirements in its contracts.  

Julie explains the origin of the FCA and its historical uses before the Civil Cyber Fraud initiative. The pair talk about the theories of liability under the False Claims Act for cyber non-compliance and what might constitute a material misrepresentation as to an organization’s cyber security plan.

As lead counsel in both US ex rel. Decker v. Penn State (Eastern District of Pennsylvania) and the similar Georgia Tech case (Northern District of Georgia), Julie discusses what factors motivate whistleblowers to come forward, what elements and evidence she looks for when deciding whether to take a case, how the investigation process works, and how relators’ allegations are corroborated throughout the process.

Julie and Derrich also discuss what impact the United States’s decision to intervene or decline will have on an FCA case and the typical process of resolution when a case is intervened. They then consider how damages might be calculated in cyber fraud cases, including how institutions can mitigate both their risk and their damages under this powerful statute. 

Finally, Julie explains the consultation process and encourages those who believe they may have information that puts national security at risk to come forward for a free consultation. With these cases, far more than “just” money is at risk, and Bracker & Marcus urges those who can help keep our country safe to come forward.

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